The Nine (9 page)

“We’ll hear argument next in No. 91–744,
Planned Parenthood of Southeastern Pennsylvania v. Robert P. Casey
,” Rehnquist said in his familiar long-voweled midwestern drawl. “Ms. Kolbert?”

“Mr. Chief Justice, and may it please the Court. Whether our Constitution endows government with the power to force a woman to continue or to end a pregnancy against her will is the central question in this case,” Kolbert began. “Since this Court’s decision in
Roe v. Wade
, a generation of American women have come of age secure in the knowledge that the Constitution provides the highest level of protection for their child-bearing decisions.”

That was as long as the Court allowed most advocates to speak without jumping in with questions. But there was only silence from the justices, so Kolbert kept going. “This landmark decision, which necessarily and logically flows from a century of this Court’s jurisprudence, not only protects rights of bodily integrity and autonomy but has enabled millions of women to participate fully and equally in society. The genius of
Roe
and the Constitution is that it fully protects rights of fundamental importance. Government may not chip away at fundamental rights, nor make them selectively available only to the most privileged women.”

More silence from the bench. A murmur began in the audience, a very knowledgeable group, especially in a big case like this one. Why weren’t they asking any questions? Why were they paralyzed?

Three minutes, four minutes, still no questions from the justices, and no retreat from Kolbert. Her strategy was the same as the one in her brief—go for broke, all or nothing, overturn the Pennsylvania regulations in their entirety or overturn
Roe v. Wade
. “Our nation’s history and tradition also respects the autonomy of individuals to make life choices consistent with their own moral and conscientious beliefs,” Kolbert said. “Our Constitution has long recognized an individual’s right to make private and intimate decisions about marriage and family life, the upbringing of children, the ability to use contraception. The decision to terminate a pregnancy or to carry it to term is no different in kind.” Finally, after eight minutes, O’Connor spoke up, in her characteristic singsong earnestness, reminiscent of a nursery school teacher.

“Ms. Kolbert, you’re arguing the case as though all we have before us is whether to apply stare decisis and preserve
Roe
[
v
.]
Wade
in all its aspects,” she said. “Nevertheless, we granted certiorari on some specific questions in this case. Do you plan to address any of those in your argument?”

Kolbert replied, in so many words, no. She was not going to concede that the individual restrictions could be separated from the larger question of preserving
Roe
. Kennedy tried, too—“You have a number of specific provisions here that I think you should address”—but Kolbert wouldn’t yield. To her, ruling on
Casey
meant ruling on
Roe
.

At the conference of the justices that week, the result was muddled. Seven justices—Rehnquist, White, O’Connor, Scalia, Kennedy, Souter, and Thomas—wanted to uphold most of Pennsylvania’s restrictions on abortion. Only Stevens and Blackmun wanted to strike them down. But there were tensions within the majority. Rehnquist, White, and Scalia were on record wanting to overrule
Roe
, and Thomas (his confirmation uncertainty notwithstanding) wanted to join them. But there was not yet a fifth vote to overturn
Roe
outright. Neither O’Connor, Kennedy, nor Souter was ready to go that far. So at the end of the conference, Rehnquist assigned
Casey
to himself, intending to write an opinion that allowed states almost a free hand in regulating abortion. As a practical matter,
Roe
would be overturned, but not in so many words.

Then, early the following week, Souter decided to pay a visit to O’Connor.

4

COLLISION COURSE

O
utsiders tend to be surprised by how rarely Supreme Court justices speak to each other, one-on-one. Under Rehnquist, the nine spent a good deal of time together as a group. Argument days, most Mondays and Wednesdays when they were in session, were preceded by the traditional thirty-six handshakes, each justice with every other, and they had lunch together most of these days as well. There were also conference discussions every Friday during these weeks. After the conference, however, the justices tended to communicate with one another through memos, which were often drafted by their law clerks. (After e-mail became ubiquitous, the memos also circulated electronically, but always with paper copies as well; among the justices, only Thomas and Breyer, and eventually Stevens, were fully comfortable communicating by e-mail.)

There was, in short, very little of the informal contact of normal office life, just a few phone calls and even fewer visits to one another’s chambers. Some justices had substantive discussions with individual colleagues as rarely as once or twice a year. So Souter’s walk down the hall to visit O’Connor had more significance than it would have in another law office. It was meaningful, too, that Souter went to see O’Connor, not the other way around. All of the justices, not just Souter, went to O’Connor. The way to win a majority in the Rehnquist Court was to earn O’Connor’s support, so her colleagues invariably came to her as supplicants.

In his second year on the Court, Souter sought nothing less than to undermine the central tenet of the conservative revolution which his appointment was supposed to advance. Souter was appointed to overturn
Roe v. Wade
; instead, he was going to try to save it.

In his gentle manner, Souter told O’Connor he was uncomfortable with the chief’s approach in
Casey
. Couldn’t they find a way to preserve the core of
Roe
while upholding most of the specific provisions of the Pennsylvania law at issue? Indeed, Souter said, O’Connor’s own opinions pointed the way.

O’Connor’s views on the right to abortion grew out of the original decision in
Roe
. There, in 1973, Blackmun had written that the “fundamental” right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” but the right to abortion was not absolute. Where a state could show that there was a “compelling state interest” in limiting the right to choose abortion, the Court would approve the restriction. To discern the state’s interest in regulating abortion, Blackmun devised a framework that relied on pregnancy’s trimester calendar. The justice canvassed the medical literature and determined that in the first trimester the prospect of carrying a pregnancy through to childbirth was clearly more risky for a woman than an early-term abortion. Thus, he wrote, the state could not restrict abortion during this period, and the decision “must be left to the medical judgment of the pregnant woman’s attending physician.” (Much of the opinion in
Roe
was expressed in terms of the rights of the physician, rather than those of the woman; as a former general counsel for the Mayo Clinic, in Minnesota, Blackmun had a high regard for the medical profession.)

But as the pregnancy continued, Blackmun wrote, laws could reflect the government’s interest in protecting the fetus, not just the woman’s rights. After the first trimester, the state could regulate abortions, but only in “ways that are reasonably related to maternal health.” Finally, “subsequent to viability,” the state could restrict or even ban abortion, except when it is necessary “for the preservation of the life or health of the mother.” In essence,
Roe
introduced a sliding scale on which a woman’s right to abortion was greatest early in her pregnancy and could be limited as the fetus grew. Even so, Blackmun insisted, any law restricting abortion, even late in a pregnancy, would have to ensure protection of not only a woman’s life but also her health. Blackmun elaborated on this point in his lesser-known but still important opinion in
Doe v. Bolton
, a challenge to Georgia’s abortion law, which was decided by the Court on the same day as
Roe
. Again expressing the right to abortion as a doctor’s choice, Blackmun wrote that the decision to perform the procedure “may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient.” In other words, when a woman’s health was at stake, at whatever stage of the pregnancy, she and her doctor should be able to choose an abortion.

O’Connor took an independent tack on abortion from the beginning of her tenure on the Court. In her first important case on the subject, in 1983, the majority struck down a set of rules in Akron, Ohio, that were clearly designed to discourage women from having abortions, including a regulation requiring that all abortions occurring after the first trimester take place in hospitals and another calling for a twenty-four-hour waiting period for women seeking abortions. O’Connor wrote a dissenting opinion, in which she defended the regulations and attacked part of Blackmun’s logic in
Roev. Wade
. Improvements in medical technology, O’Connor declared, would render the trimester analysis obsolete. Increasing numbers of premature infants would be able to survive birth at ever-earlier stages of pregnancy, she argued, and women would be able to have safer abortions later in pregnancy. “The
Roe
framework, then, is clearly on a collision course with itself,” she continued, in what became her most famous sentence as a justice. “As the medical risks of various abortion procedures decrease, the point at which the State may regulate for reasons of maternal health is moved further forward to actual childbirth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception.”

O’Connor proposed a new legal framework to replace
Roe
. Adopting a phrase contained in a brief filed in the case by President Reagan’s Justice Department, she wrote that abortion regulations should be upheld unless they created an “undue burden” on a woman seeking to have the procedure. O’Connor didn’t define exactly what she meant by an “undue burden,” but she argued that, according to such a standard, the Akron restrictions should be upheld. In fact, when it came to medical science, Blackmun turned out to be more prescient than O’Connor. She was wrong to conclude that the point of viability would shift in any meaningful way. In
Roe
, Blackmun had written, “Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” Early in the twenty-first century, more than three decades after
Roe
, it is still rare for a fetus younger than twenty-three or twenty-four weeks to survive. (The term of a normal pregnancy is thirty-eight to forty weeks.)

As usual when it came to controversial issues, O’Connor’s preference was for the matter to be settled in the political arena rather than in the courts. As a former state legislator herself, she always had a predisposition to favor the judgments of these officials. Quoting an opinion by Justice Oliver Wendell Holmes Jr. from 1904, O’Connor wrote, “In determining whether the State imposes an ‘undue burden,’ we must keep in mind that, when we are concerned with extremely sensitive issues, such as the one involved here, ‘the appropriate forum for their resolution in a democracy is the legislature.’ ”

But through her first decade on the Court, even as O’Connor criticized
Roe
, she never called for its outright rejection. In 1989, the Court came close to overturning
Roe
when it approved a Missouri law prohibiting most abortions in public hospitals. In
Websterv. Reproductive Health Services
, Rehnquist, joined by White, Scalia, and (for the most part) Kennedy, all but called for the end of
Roe
. But O’Connor, characteristically, held back, writing, “When the constitutional invalidity of a State’s abortion statute actually turns upon the constitutional validity of
Roe
, there will be time enough to reexamine
Roe
, and to do so carefully.”

This, then, was the state of O’Connor’s thinking when Souter paid her his visit. Opposed to Blackmun’s reasoning in
Roe
. Supportive of efforts by state legislators to limit abortion. Cautious—as always—about getting out of step with public opinion. But “time enough” had passed. She had to take a stand on
Roe
.

Even though the conference in
Casey
resulted in Rehnquist’s assigning himself the majority opinion, that didn’t end the matter as far as Souter was concerned. He hated to see the Court drawn so directly into a contested political issue. He believed, perhaps naively, that there was an island of “law” that could be insulated from the daily rush of events. It had been almost twenty years since
Roe
, and while the Court had allowed states to regulate and limit abortion during that time, there had been little doubt that the Constitution forbade a complete prohibition on abortion. Yet Rehnquist’s position at conference, and the opinion he was writing, would clearly permit a total ban.